Monthly Archives: April 2023

Constitutional regulators: what are they, and how do they work?

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This is the first edition of this briefing. It has since been updated. Read the most up-to-date version and other briefings on the Constitution Unit’s website.

Constitutional regulators play a vital role in the UK’s democratic system, but recent ethical scandals have led to suggestions that they need to be strengthened. Lisa James, Alan Renwick and Meg Russell argue that all those in public life should uphold the regulatory system, and take such proposals seriously.

Background

Constitutional regulators enforce key standards and rules. These cover matters which are viewed as too important to be left purely to constitutional norms, but most of which are not covered by the criminal justice system (though some regulators do have prosecution powers).

Regulation is common to many sectors and professions, including those beyond the scope of this briefing. For example, the medical and legal professions use regulatory standards systems, and many industries operate statutory or voluntary ombudsman schemes.

The focus of this briefing is the regulators and regulatory systems that relate to politics in the UK. This includes various codes that govern the behaviour of politicians or officials, and the regulators that enforce them. It also includes regulators which oversee the processes of politics and governance – such as elections, public appointments or public spending – and those that aim to uphold certain standards of public discourse, for example by regulating the media.

Various terms exist for such organisations; for example, they are often referred to as constitutional watchdogs or guardians. Here, for simplicity, we use the term constitutional regulators throughout.

Why do regulators matter?

Regulation safeguards the integrity of a profession or sector, and protects the public. It establishes the boundaries of acceptable behaviour, ensuring that both the regulated profession and those who come into contact with it understand what standards should be upheld. In politics, such standards most obviously include financial probity and personal conduct. Regulation also guards against unfair competition, often by preventing those in dominant positions from abusing their power. One example is the legal requirement for a purdah period in the run-up to elections, which bars incumbent governments from using public money or resources to support their campaigns.

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What role should the monarch have in a constitutional crisis?

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Robert Saunders argues that the UK cannot rely on a ceremonial monarchy that seeks to remain apart from politics to protect the constitution from attack in times of crisis. For that, he concludes that other instruments will be needed, without which both monarchy and the constitution will suffer. This post is based on material from the Unit’s new report, The British Monarchy, co-published yesterday by the Unit and the UK in a Changing Europe.

For much of British history, it was hard to imagine a constitutional crisis without the monarch at its core. From the barons at Runnymede imposing Magna Carta on King John to the expulsion of James II in 1688, the English (and, later, British) constitution was forged in the collision between Crown and parliament. As late as the nineteenth century, suspicion of royal power pulsed through progressive politics. Victorians may have revered ‘Her Little Majesty’, but they also celebrated a ‘Glorious Revolution’ against royal tyranny and erected a statue of Oliver Cromwell outside Westminster.

With the decline of constitutional politics in the twentieth century, the political functions of the Crown slipped from public debate. Yet recent controversies have redirected attention to the role of the monarch at times of constitutional crisis. More specifically, they have reopened a question that deserves greater public discussion: who wields the historic powers of the Crown once the monarch is no longer politically active? Should there be any limit on their use by a Prime Minister?

An emergency brake

Some of the highest powers of the British state still technically reside with the Crown, including the right to declare war, conclude treaties and suspend parliament. By convention, those powers are exercised ‘on the advice of the Prime Minister’. But they do not belong to the Prime Minister, and might, in theory, be withheld.

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Fourteen things you might want to know about the coronation

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As the first coronation in 70 years approaches, many people still have questions about its purpose, its format, and (perhaps most importantly) what could go wrong. The Unit has created an FAQs page, authored by the Constitution Unit’s monarchy experts Robert Hazell and Bob Morris, to answer those questions, 14 of which are discussed below.

1. What does a coronation do?

The Coronation does not ‘make’ the monarch. Under common law, the new monarch succeeds to the throne immediately on the death of their predecessor: so Charles became King the moment the Queen died.

The coronation has several functions. It is a religious rite that symbolises the descent of God’s grace on the new ruler. The King takes a solemn three-part oath to govern according to laws and customs; render justice with mercy; and maintain the Protestant Reformed Religion plus the rights and privileges of the Church of England. He is then anointed and crowned by the Archbishop. In sum, the Church blesses the monarch and his new reign; he in turn promises to protect the Church, and to serve his people.

2. How old is the coronation?

The coronation ceremony is over 1000 years old. It was formalised in AD 973, with the coronation of the Anglo-Saxon King Edgar by St Dunstan of Canterbury in Bath Abbey. The first Norman King to be crowned in Westminster Abbey was William the Conqueror, crowned there on Christmas Day 1066. King Charles is the fortieth monarch to be crowned at the Abbey since the Conquest.

3. What are the main elements in the coronation?

The main elements are the recognition, the oath, anointing, crowning, homage, and communion. The recognition is at the start, when the Archbishop presents the new monarch to the congregation, with trumpet fanfare, and they all shout, ‘God save the King’. The King then takes the coronation oath, and the Archbishop anoints the King with chrism (holy oil from Jerusalem). Similar to an ordination, this is when the grace of God is called down upon the new monarch and his reign.

After the anointing, the monarch is crowned by the Archbishop, seated upon King Edward’s chair, used in coronations for the last 700 years. Then comes the homage, when the Archbishop and others kneel before the King to pay homage in ancient words of fealty. Finally, there is communion: the coronation is also a eucharist, in which the monarch takes communion.

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What can the OECD initiative on ‘building trust and reinforcing democracy’ tell us about multilateral efforts to strengthen democracy?

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The OECD’s new commitment to ‘building trust and reinforcing democracy’ arrives amid a broader international movement to address ‘backsliding’. In this post, Sophie Andrews-McCarroll explains the new initiative.

Alarm bells have increasingly been sounded about the risks of democratic backsliding across the world – including in established democracies in Europe, the UK and US. Backsliding is the process by which a state becomes gradually less democratic – often manifest in the reduction of checks and balances, breakdown in political norms, and reductions in civil liberties and electoral integrity. It is facilitated by political polarisation, and declining public trust in democratic institutions. The OECD’s new initiative on ‘building trust and reinforcing democracy’ – discussed at a high-level ministerial meeting, chaired by Luxembourg, in November – is one response to these concerns.

The OECD approach to policy problems

The OECD is an intergovernmental organisation that provides countries with independent policy analysis to promote economic and social well-being. It promotes best practice and provides international benchmarks, seeking to promote evidence-based policy solutions and entrench norms through a peer review and surveillance approach. Its authority rests on its technical expertise, and it lacks the coercive instruments available to other international organisations like the International Monetary Fund, World Bank, European Union or World Trade Organisation. This appeal to evidence and best practice is supported by a consensus-based model of decision making: all 38 member countries must unanimously agree to all commitments or declarations made, and any action plans adopted. Such an approach means that initiatives can only be agreed if they have broad buy-in, including from smaller, traditionally less powerful countries. But it also means that ambitious goals may have to be watered down to achieve consensus.

Building trust and reinforcing democracy

This subject has been a long-standing OECD priority, being on the organisation’s horizon since at least 2013. But the holding of the ministerial meeting – which itself required a consensus decision by the member states – reflects its topicality and urgency.

It also comes amid a number of other international initiatives designed to strengthen democracy. Notably, these include the United States’ 2021 ‘Summit for Democracy’, an international summit which set out a programme of democratic reform to be pursued during the following ‘Year of Action’, and followed up at a second summit in March 2023. The US was a vice-chair – along with Colombia, France and Lithuania – of the OECD ministerial meeting, reflecting the Biden-Harris administration’s commitment to reversing both the notorious democratic erosion the US suffered under Donald Trump, and its retreat from multilateral institutions and agreements. The November meeting also followed, and drew on, an extensive cross-national survey investigating public trust levels across 22 OECD countries.

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The Belfast/Good Friday Agreement at 25: the need for coherent engagement in London

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Alan Whysall, author of the Constitution Unit’s recent paper on The [Belfast/Good Friday] Agreement at 25, looks at immediate political prospects in Northern Ireland. The next few months may decide whether the Agreement has a future and London, he suggests, must show sustained commitment and leadership. Getting the institutions back is the starting point for reviving the Agreement, but there is much more to do.

For over a year, the DUP, the largest unionist party in Northern Ireland, has prevented the Assembly and Executive from functioning, in its dispute over the Northern Ireland Protocol and Windsor Framework. Hardliners urge it on, though other unionists oppose the veto on government.

The crux of the unionist objections varies within and between parties. Some emphasise the Irish sea border, the inconveniences of which may be significantly alleviated by the Framework. Others focus on constitutional fundamentals, as they see them: the continuing role of EU law and the European Court of Justice (because Northern Ireland remains within the European Single Market for goods) and the alleged impact of the Protocol on its place in the Union. Some speak of Northern Ireland as an EU ‘colony’; some now openly reject the Agreement. They see refusing to enter government as ‘leverage’ with London (implying the slightly odd characterisation of their participation in self-government as a favour to others).

Meanwhile civil servants run the administration, but without legal authority to take new policy initiatives – and doubtful legitimacy for making contentious decisions. That has just come to the fore with a difficult budget, set from London in the absence of an Executive, embodying real term cuts of 6.4%. Civil servants may be expected to decide where the impact should fall, and are objecting publicly.

Where will the negotiation lead?

Political movement is unlikely before the 18 May local government elections. The DUP may want to negotiate on the Windsor Framework; measures safeguarding the Union; and other sweeteners (including, as always, money). But there are serious limits to what is possible. The present government in London is unlikely to reopen the Framework – there may be flexibilities around implementation, but anything more risks reviving conflict with Brussels. The government has promised ‘legal reassurances’ about Northern Ireland’s place within the Union, but how much more it can offer is doubtful (it is already expressly protected: broadening the guarantee to prevent changes unionists object to would be strongly resisted).

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